1833889 (Migration) - [2019] AATA 6606

1833889 (Migration) [2019] AATA 6606 (25 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1833889
MEMBER:Antoinette Younes
DATE:25 November 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Statement made on 25 November 2019 at 4:54pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – ground for cancellation – consequential cancellation – decision to cancel primary visa set aside by the Tribunal – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 114, 140
CASES
Chou v MICMSMA [2019] FCCA 2709
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.140(2) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant’s husband’s visa was cancelled pursuant to s.109. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. Post-hearing, the Tribunal received multiple documents and submissions relevant to this review.
The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
Section 140(2) provides that if:
(a) a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person's visa.
The word ‘only’ in s.140(2) means that the fact of another person holding a visa was a condition precedent to the grant of the visa. The applicant is a person who held a visa only because her husband held a visa, and therefore the cancellation power under s.140(2) is enlivened. Section 140(2)(b), by the use of the word ‘only because’, is understood to mean that the person holds a visa by reason of another person having held a visa, in the sense that another person holding a visa was, ‘a condition precedent to the grant of the visa’.[1]
[1] Chou v MICMSMA [2019] FCCA 2709.
In the present case, the applicant’s visa was cancelled under s.140(2) because she was sponsored by her husband whose visa was cancelled. Unlike s.140(1), discretionary cancellations under s.140(2) do involve a ‘decision’, and the Tribunal generally has jurisdiction where the visa cancellation decision is a Part 5-reviewable decision under s.338 or a Part 7-reviewable decision under s.411.
By way of background, the applicant’s partner was granted a protection visa on 26 July 2011 essentially on the basis of being a stateless Rohingya. For reasons stated in the Departmental decision record, the delegate concluded that the applicant’s husband is a citizen of Bangladesh, he holds a genuine Bangladeshi passport and that he has the rights and privileges of all Bangladeshi citizens. Consequently, the delegate found that he is not stateless as claimed. The Tribunal reached different conclusions; in AAT matter number 1833850 relating to the applicant’s spouse, the Tribunal found:
The Tribunal is satisfied that a fair assessment of the material before the Tribunal supports the claim that the applicant [the spouse] is Rohingya.
The primary question then to be determined by the Tribunal is whether the applicant’s father, having fled to Bangladesh in 1978 with his family could have legally acquired citizenship in Bangladesh between 1978 and 1979 prior to his travels to [Country 1]. This requires an assessment of independent country information… the weight of independent sources strongly suggests that Bangladeshi authorities have not granted citizenship status to Rohingya and possession of a Bangladeshi passport is not unequivocal evidence of Bangladeshi citizenship.
…
The cumulative weight of country information before the Tribunal, which it accepts, indicates that there is no ‘legal’ pathway for Rohingya to obtain Bangladeshi passports. Whilst some Rohingya, in the past, have succeeded in obtaining Bangladeshi passports, this has not been through legal means or legitimate entitlements. On the evidence, the Tribunal is satisfied that the applicant is a Rohingya born in Myanmar to Rohingya parents, the Tribunal finds that the Bangladeshi passport the applicant travelled to Australia on is not a legitimate passport, obtained through legal means. The above information was consistent with the evidence of the applicant.
…
In consideration of the evidence in totality, the Tribunal finds that the applicant is not a Bangladeshi citizen and that he is stateless, as claimed. The Tribunal finds that the information he provided in his application for a protection visa and his statutory declaration in this regard, is correct.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
As the Tribunal in the husband’s case decided that there was no non-compliance in the way described, the Tribunal set aside the decision and substituted a decision not to cancel the applicant’s husband’s Subclass (155) (Five Year Resident Return) visa. Pursuant to s.114 of the Act, if a decision made under s.109 to cancel a person’s visa is set aside by the Tribunal, then the visa is taken never to have been cancelled.
The Tribunal concludes that the decision to cancel the applicant’s visa under s.140(2) should be set aside on the basis that her husband’s visa is not cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Antoinette Younes

Senior Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.